Slocum v. Erie R. Co.
| Decision Date | 06 January 1930 |
| Docket Number | No. 113.,113. |
| Parties | SLOCUM v. ERIE R. CO. |
| Court | U.S. Court of Appeals — Second Circuit |
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Stanchfield, Collin, Lovell & Sayles, of Elmira, N. Y. (Halsey Sayles, of Elmira, N. Y., of counsel), for defendant-appellant.
Mortimer L. Sullivan, of Elmira, N. Y., for plaintiff-appellee.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).
The plaintiff seeks to establish negligence by showing that the defendant railroad company disregarded the standards of care set up by its own rules, but it is hard to see how the disregard of these rules could have had anything to do with the death of plaintiff's husband.
In the first place, all the testimony indicates that Slocum fell from the car on which he was riding, through some unknown cause, long before the engineer closed the throttle and put in the slack. Therefore, even if Delaney had stayed on duty and had uncoupled the engine, and if the fireman had remained in the cab so as to give Slocum a slacking signal, the accident would not have been avoided. Whatever may have been the cause of Slocum's death, it was not the neglect to give a slacking signal, because he evidently fell before any vibration from putting in the slack could have occurred.
Moreover, even if the neglect to observe the company's rules can be thought to have had any relation to the accident, Slocum participated in the violation, and so cannot be heard to complain of it. According to the undisputed testimony, he asked the engineer to have the fireman leave the engine in order to come down and uncouple the engine from the moving cars, and he even gave the original signal to the engineer to start the train. If rules were violated, he was an active participant in their violation. Unadilla Ry. Co. v. Caldine, 278 U. S. 139, 49 S. Ct. 91, 73 L. Ed. 224; Unadilla Ry. Co. v. Dibble (C. C. A.) 31 F.(2d) 239.
In addition to all this, there was no proof that it was the practice of the defendant for the fireman or engineer to give a signal that the engineer was to put in the slack. The ordinary vibration which is likely to occur in railroading is not evidence of negligence which should be submitted to a jury. There must be proof of some unusual jar, and this was altogether lacking in the present case. Gulf M. & N. R. R. Co. v. Wells, 275 U. S. 455, 48 S. Ct. 151, 72 L. Ed. 370; Toledo, St. L. & W. R. R. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513.
If there was any risk from such a slight jar as may have occurred here, it was an inevitable hazard of the undertaking which the decedent assumed. Missouri...
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